Friday, 18 December 2015

It’s mad Friday
and there is plenty to do, particularly with all that additional networking to
fit in on top of keeping the production lines rolling.

The ever
increasing “efficiencies” at the many court offices we deal with are a big help
too...

The latest gem
to pass across my desk this morning was the letter from the Salford Centre of Excellence
which encloses one of those ugly forms from Registry
Trust Limited warning that until we supply the missing information about
one of the defendants we shan’t be able to enforce the judgment that we have
apparently managed to enter in default on behalf of our client.

It seems that Registry
Trust has not received (from the court office) the complete address of the
second of two husband and wife defendants so we have had to wait whilst this
goes backwards and forwards and is then dumped on us. Our reply today will
enclose a copy of the claim form that we filed at the time of issue with the
“missing” house number and street name highlighted in two places on the second
defendant’s copy. We wait now until after Christmas before we can take any
further steps to enforce judgment that we requested a fortnight ago. Great.

That isn’t even
a remarkable case. But there is more.

I am reading the
report of yet another call from one of the costs muppets - as my old friend
(now retired) Martin Cockx used to call them - demanding a response to a daft
opening offer on a bill of costs in relation to a claim that settled without
proceedings but where we had to issue to obtain payment of the agreed damages. We've said repeatedly that we need to know what's happening at the court...

We kicked off
this case at the beginning of October.
An acknowledgment of service was filed by the defendants suggesting that
it wasn’t appropriate for the simplified Part 8 procedure. By 29 October we had both written to the
court with our short views on the matter.

The file was
referred to the judge. We hear it ‘came
back’ on 4 December. We are told that
the average time for dealing with it from here (i.e. producing the order in the
terms directed by the judge) is 31 days. That’s thirty-one. A month.

Let’s hope that
when that finally arrives, some time next year, it is accurate. Recently, we had a matter with a three hour
time estimate listed for ten minutes and then vacated upon objection from the parties. At the subsequent hearing the judge told me
that he had asked for it to be listed for a ten minute directions appointment
by telephone initially but that information seems to have been lost forever.

In another case,
a notice of hearing with, again, a ten minute estimate was queried and met with
explanation that the court staff had misread the judge’s notes and that it
should have been in for an hour, which was what our opponents had very sensibly
requested.

Meanwhile, from
another local court, comes the report that our bankruptcy petition listed for
hearing a fortnight ago was adjourned, as we had asked following inability to
serve an evasive debtor. The court staff
have absolutely no idea, they say, why at the same time the court did nothing
with our application for an order for substituted service which was lodged
contemporaneously with the request to adjourn.

I have just had
an apology from the wonderful MCOL - the original
and best - for sending us notice of allocation, directions questionnaire
etc in a case where we unbundled, drafted the defence for our client and filed
it along with a notice of acting in person.

Perhaps the
biggest waste of time this month so far has been what was a nevertheless very
entertaining, and for my trainee illuminating, trip to one of our local courts on the increasingly
rare occasion of a real hearing, with live people all together in the same
room!

For me it was (happily)
a first taste of relief from sanctions
as I ran what looked to be a fairly promising resistance to an application to
set aside a default judgment that we entered after an agreed extension of time
expired and, still, no defence to counterclaim had been filed. During a comical discussion between district judge, counsel for the applicant and myself it
became apparent that we all had slightly different versions of what one might
loosely term a “court file”, originating from Greater Manchester.

In a perfect
storm of confusion oop North we seem to have had a couple of days during which
there were two notices of transfer and a judgment by the court of its own
motion on an application from us which wasn’t an application at all but a
request for entry in default of defence.

None of this would
have arisen if on receipt of our (clearly-labelled) request for judgment in default
of defence to counterclaim the court office had recognized that the defence (to
the claim) that accompanied, in the same document, the counterclaim in respect
of which we were requesting judgment did not constitute a barrier to that
request.

Consequently,
the court office did not need to “return” our email that filed the request -
still less ask us, when the error was acknowledged, to send it again!

But we reached
that point anyway and then had an entertaining debate about whether a judge in
Lancashire could make an order in a case where the file had already made its
way to Somerset and touched upon such factors as that we now have one unified (sic)
county court system across the country. Sadly,
the point was decided by reference to apparent relative timing of two actions,
one judicial and the other clerical, with the conclusion that a court officer
had stayed the case before, later that same day, a judge purported to enter
judgment.

So the order was
set aside and we shall wait to see whether some thousands of pounds of costs
wasted on both sides will be paid by the court administrator (ha!) when we go
back to argue for the costs reserved.

It is all very
interesting (at least I hope so) but in none of these cases are we delivering,
yet, a commercial solution. We’re
spending more time and more money, whether it is ours or the clients, to
achieve at best a badly delayed outcome.

It’s no longer
possible in many circumstances to achieve what the law and even the mutilated
rules of procedure envisage should be achievable within timescales that should
be achievable, if at all. There aren’t enough people to do it, and those who
are there don’t know enough because those who did have (largely) gone.

Justice delayed
is justice denied as William Gladstone (allegedly) once observed. This emanation of the State continues to
decline and fail through the neglect of government. It remains on the Road to Ruin.

Friday, 11 September 2015

We had better not count chickens
but it was heartening to see the report by Chloe Smith in the Law Society
Gazette yesterday about evidence presented to a House of Lords committee this
week.

The headline assertion is that
fees for Employment Tribunal claims are taking away the incentive for employers
to engage in the Early Conciliation scheme
(EC) introduced last year.

On the face of it, EC was a
cracking innovation. The essence of it
is a rule that sacked employees and others with complaints against their
(former) employer cannot begin Tribunal proceedings until they have attempted
mediation.

ACAS has a responsibility for the
management of the scheme. I have
expressed doubts about the adequacy of resources and procedures there before. I have seen very little information on how
the scheme has worked in practice over the last 12 months.

But the big thing with mediation,
from the outset, has been the difficulty of forcing participation. I first
wrote about this in Mediation's Achilles heel and have made the point that in this scenario you can usually make the horse drink
but the question is whether you can get it to water?

The EC scheme is clever in its
simplicity. You can’t begin a claim
unless you have attempted mediation and have a code number to prove it, to be
displayed on your application to the Employment Tribunal if and when efforts
fail. We all know of course about the
short time limits in the Tribunal and further legislation provides that time
stands still for a short period whilst attempts are made to settle.

The new scheme came in a year
after the introduction for the first time of fees for Tribunal claims. The
detail was examined in Fire at will
and the most relevant statistic is that it now costs an unfair dismissal
claimant a total of £1,200 in tribunal fees to pursue a claim.

That’s somewhere close to the
average monthly wage and, to be clear, that’s for tribunal fees only – no
solicitors costs included in that figure.

A lot of us said that this would
have a devastating impact on claims and effectively amount to a barrier to
justice. The figures have demonstrated
that, as reported in Access denied.

The trade union, Unison, has made two attempts to
judicially review the fees regime and been unsuccessful but was encouraged by
comments by Court of Appeal judges last week - see Judges urge review of tribunal fees.

Now the House of Lords Committee
has been told of the effects in practice.
One specialist said that there is a clear shift towards employers just
saying “no, issue your claim and then we will talk”.

In individual cases, employers
are far more inclined to take the risk that proceedings will be issued, knowing
that the majority of claimants have so much to lose, sums that they simply cannot
afford. Worse than that, according to one employment silk, the collective
effect of this is that employers are being more bullish across the board
because they feel less pressure to settle matters generally and have more
available budget for legal fees to fight!

At the end of the day it is quite
simply a system that does not work because it is so horrifically one-sided. We can expect the same to happen
in many civil claims in our county courts as a result of the eye-watering
increases in court fees rushed in by the former Lord Chancellor, Christopher
Grayling, just prior to the election.
See Road to ruin.

I explained there why mediation
is not the silver bullet. It is
consensual. It won’t work where one side
holds all or most of the cards and simply wants to win.

Let’s have a quick look again at how that works in practice. I’ll play the bad guy, hell bent on winning at all costs...

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to. Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court. Can’t we mediate? Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Here is the weakness of mediation
– of which, don’t get me wrong, I am an advocate – because you can’t, save by
some fundamental changes to the principles of our justice system, force it upon
people. Some would say that it is akin to
trying to negotiate with a terrorist.

Former US president Theodore Roosevelt is famous for the maxim, “speak softly and carry
a big stick”. There are no two ways about it –
that is the reality of litigation. I am
all for speaking softly, nicely, collaboratively - and trying to engineer a
solution which is good for everybody involved.

But rarely can it be done without
the threat of something more unpleasant if the opposition won’t play ball. It needs a big stick.

The trouble is – as this
government will now find on the road to Damascus – that all the big sticks
are on one side of the table, because nobody on the other side of the table can
afford one.

Wednesday, 26 August 2015

No, we’re not talking about the
sort of package reminiscent of Hamilton v
Al Fayed but the distinctive – if that can be the right word – presentation
from the Compensation Recovery Unit (CRU)
of the Department for Work and Pensions
(DWP) in Tyne and Wear.

These visibly austere wrappers
are complemented by the quality of the confetti inside them. Who remembers Jeyes and Izal ??

Nothing wrong with that,
especially at a location where we’ll scan it on arrival and shred the
original. The country’s still broke, so
any reasonable economy is welcome.

It’s a pity that some cretin is
wasting the postage and the meagre effort to send it here when, along with a
couple of others earlier this week and many more in weeks past, they have
nothing to do with us.

Since the beginning of June 2015,
for reasons which are beyond me, this government department has been
supplementing the communications that properly relate to cases being handled by
my firm with a much larger number of notifications concerning people we’ve
never heard of. They started by sending
us fourteen in one post (all in separate envelopes of course) during the first
week of June.

Inspection revealed that these
were originally addressed to a firm of the same name in Christchurch,
Dorset. That’s about 54 miles from here
so close enough for us to know something about the place, far enough away to
obviate any confusion – or so you’d think.

Maybe we haven’t wasted enough of
our time looking but we can’t find any trace of a solicitor of this name in
Christchurch, past or present. There are
two separate firms in the North-East but the only outfit with a remotely
similar name in Christchurch apparently doesn’t deal with personal injury.

Of course, we’ve told the
CRU. We sent them back the first
fourteen letters, so it would be a visible problem. Has that achieved anything? No.

Somebody keeps pressing the
button. It’s curious, is it not, that
our references are always quoted as either “not provided” or the name of the
client we don’t act for.

One of our local courts has
recently come up with a variation on this type of puzzle. A couple of weeks ago we received a Notice of adjourned hearing that didn’t
identify either of the parties at all.
The document just has a big blank space top left.

And of course the one piece of
unique information, being the case number, was in an altered format unrecognised
by our case-management systems. Fortunately
it didn’t take too long to guess at possibilities and check document folders
for a close match.

We still don’t know what prompted
that particular notice of adjournment for more than two months (though we can
guess at the part that may have been played by the opposition) because we can’t
get any answer from the court.

One of the Cornwall courts has
also made a decent bid for some kind of prize this month. This is similar stuff we’ve experienced in
Devon in the past but it gets better...

At the end of May we were
notified by the CCMCC in Salford that one of our actions was being transferred because of
an application by one of three defendants to set aside judgment.

Knowing how long these things
take in the best of circumstances, we left it for two or three weeks before then
starting to chase. The terminally grumpy
letter went in the third week of July.

What we then exposed was the making
of an order, in the first week of July, setting aside one of the
judgments. There had been no hearing and
the order hadn’t been sent to us in the space of more than two weeks. There’s not much hope that we get onto
sophisticated stuff like notices of the right to apply to vary or set aside,
and a copy of the application which nobody had sent to us.

So this comes to the surface
along with another order, essentially repeating the set aside of the same
judgment, but with the appropriate statements (CPR 23.9) that because the order
has been made without a hearing we can apply to set it aside. That's accompanied (why?) by the order made a
fortnight earlier that ostensibly already set aside the judgment but which is
obviously defective and ineffective.

Neither has with it a copy of the application which prompted the
making of the order. We have to chase
for that.

During the course of the week
that follows, a copy of that application is faxed to us. We’re right up to the time limit for filing
the application to set aside within seven days so as a precaution we send by
email, and ask for the fee to be debited to our account with the MOJ.

Here’s where we run into the problem that the
Rules still haven’t caught up with electronic payments so that we can’t file
such an application because it’s one that attracts a fee – even though it’s no
longer one that requires a cheque.

Anyway, we fax it. When we telephone the court to check that the
application has been received and processed, we’re told that anything sent by
fax won’t have been received. The court
representative insisted that we couldn’t have sent anything by fax because the
machine has been turned off and not used for four years!

Confronted with the report that
we received a fax from them – on the
same number - the week before and also
that we’d received a delivery confirmation in response to our transmission, our
contact seemed…..well, confused.

Nearly four weeks later we’re
still awaiting notification of the date to challenge an order made without
notice or consultation on an application that was apparently filed in Salford
nearly three months ago. This is just
great for the commercial client who wanted to move swiftly on recovery of an
unpaid and historically undisputed five figure debt.

On a lighter, almost surreal,
note we come finally, for now, to this month’s bid from Lambeth – always a good
contender.

In one fairly recent example, we
telephoned this citadel of justice to chase issue of some proceedings to be told there was no trace of
them, even two or three weeks after they’d been posted, and that it was
currently taking somewhere in the region of sixty (yes, 60) days to issue.

There was a lot of nervous and bewildered
laughter this end when a notice of issue arrived in the post less than twenty-four
hours later clearly evidencing the fact that the case had been “in the system”
all the time.

Standing back for a moment, this
is the administrative world that we have to grapple with day in, day out. We’re still trying to deliver something that
resembles an efficient litigation service despite incompetence and delay from
almost every direction in which we turn.
Daily, we’re trying to manage our own frustration and that of our
clients.

Meanwhile, Mr Gove seems set to
continue Count Grayling’s job of sucking the life blood out of our court
service. Apparently, we are going to
close another 91 courts across the country and save what will, frankly, be
peanuts within the overall scheme of things.

It’s clear that they can’t cope
now so how can we possibly take away yet more resources. At the same time, the
Lord Chancellor has the nerve to suggest that we’re going to have yet more
increases in court fees, doubling that grotesque £10,000 figure to
£20,000. (See Road to ruin and linked posts)

For what?

How about recognizing that
actually we need more and better resource, more people, more training, more
motivation? Instead we get more cuts to achieve savings that are a fraction of what
we waste on stuff which is a great deal less important than the civil justice
system.

Perhaps we could console
ourselves with the thought that after a lot of screaming and shouting, things
often do happen eventually. Oh, that
reminds me – Lambeth...

They must have bucked the trend
there (perhaps because ordinary litigants have given up) or they have people
with special abilities because this morning we received a document – in a case
that we are dealing with – for named clients we do recognise – entitled “Notice
of Possession”. In the main body of the
document it tells us this:-

Interesting – worrying,
even. I’m left asking myself whether the
exorcism will be listed immediately afterwards or whether that might be released
to another priest, possibly in a different dimension.

Will anybody notice, even after
the death of what was once the paragon of justice?

Wednesday, 1 July 2015

The apology follows a mass mailing campaign to thousands of members of the public promoting the provision of wills in collaboration with Co-operative Legal Services, amongst others, and containing the phrase “you don’t have to see a solicitor”.

Many solicitors are reported to
be up in arms as a result. Ben Pepperell
of Pepperell Solicitors in Hull accused Will
Aid of a “blatant disregard for everything we’ve done”.

So what’s the problem? Why shouldn’t anybody promote their – or
others’ – services on the basis that they can do it at lower cost than
competitors who, they suggest, are over-qualified?

That perennial challenge to
balance quality and price to produce something that is perceived by a chosen
market to be value for money is
central to everybody’s business.
Ultimately, wherever you are in the picture, it’s a largely personal
view.

But what has prompted me and
others to say that this recent move by Will
Aid constitutes a slap in the face is that for years they’ve marketed their
very successful campaign in collaboration with solicitors firms up and down the
country. A key if not unique selling
point for the Will Aid scheme has
been that the participants have their wills prepared by solicitors.

For those who aren’t familiar with the scheme it has been running since 1988 engaging a growing
(presumably) number of law firms up and down the country. The central feature is that solicitors offer
to draw up a will for their client who, instead of paying money to the
solicitor, then makes a donation to Will Aid.

Whilst there’s no compulsion on
the client to donate a certain or even a minimum amount – anything at all – the
suggested levels are £95 for a single will and £150 for a couple making mirror
wills. We’ve found that most clients are willing to donate that
much and so each transaction means they make a significant payment to the
charity.

It’s true that solicitors
perceive a potential benefit in the exercise, even though they’re not charging
for the work on that particular occasion. It’s an opportunity to promote the business,
to meet new clients who may have other work to bring to the firm and in some
cases leads directly to more complex work beyond the basic scope of the scheme.

Even so, it’s an investment. During last year’s campaign we raised over
£1,500 in donations. Broad brush, the
income from those jobs if they had not been within the scheme would probably
have been about double that figure.

Of course, it’s right to say that
we probably wouldn’t have had at least some of those jobs but for the campaign and
the terms of the scheme. It also follows
from that there is a high risk of people only wanting the service because it’s available
at a discount and they are not necessarily looking for any continuing
relationship or further content.

To that extent it’s a speculative
investment but it’s something that we and many other firms have done because by
and large it is promoting our professional services and the wisdom of using a
solicitor.

Now, with an email to,
reportedly, at least 10,000 members of the public saying that “you don’t need a
solicitor”, Will Aid appears to have performed
a volteface. Why?

The explanation offered by Will Aid Chair, Chris Millward, is that
when the last campaign ended in November 2014 they received many further
enquiries from people wanting to make a will who said that the promotion
offered by their local solicitors had ended.
Step forward at that point the Co-op and others prepared to provide the
service in return for a donation as well asa discounted fee.

I don’t know if there was anybody
in this neck of the woods who has made enquiries of Will Aid since the end of November 2014. We certainly haven’t been asked by the
charity to consider any further work since the end of the promotion.

Depending on volumes, we would
have considered it. We started our
campaign early, during October, simply because the enquiries were around and we
were happy to start fielding them.
Within reason, subject to availability and resources, I don’t have a
straitjacketed view of these matters.

It’s all change now, I
think. We haven’t made a final decision,
but many others have. They have said they’re
unlikely to deal with Will Aid again
and that’s perfectly understandable. The
charity recognizes that, another spokesman having said yesterday:

‘We should have been more sensitive to any
potential upset this would cause and the impact of this on our relationship
with some of the firms that have supported us in the past.

‘We would like to apologise for this, it is a
lesson learned and will form a significant part of how we evaluate future
activity outside of our November campaign. We also remain absolutely committed
to promoting the value of solicitors in the production of legally valid wills.’

Sadly, there is no indication
that the collaboration with CRS and others will end as a result – instead a
confirmation that the ‘test-marketing’ project will continue until mid-August.

We’re into the realms here of
primarily price-driven services, where the quality may not matter so much as
the question of how much it costs. When
it comes to wills, that’s a particularly dangerous approach.

You don't have to search long and hard to find a very recent headline about the distress and expense of litigation
generated by cheap wills:

It’s nothing new. Solicitors have, quite reasonably, been
banging that drum for many years. Law firms will tell you that the key to
provision of legal services at a much lower cost is the reduction in overhead
of a key component of any professional service industry – its people.

It’s a fact of life that people
who have spent their time and money acquiring knowledge and gaining experience
in earlier years expect higher rewards when they’re able to apply the resultant
product of their investment that we call expertise.

Those who haven’t made the
investment, for whatever reason, neither expect nor command as much. You can pay them far less. If you push it
down the scale you can pay them almost nothing.
See Peanuts , Cleaning
bills and other pages on this blog.

You can’t escape the fact that if
you choose the cheap service there is a high risk that ultimately it won’t be
very cheerful. Whether it’s under-settlement
of a personal injury claim, defective title to your home or a botched will and
a dispute that eats all of the funds in the estate you get what you (don’t) pay
for.

There aren’t many clear lines to
be drawn. It’s what the customer feels
comfortable with. Do they trust the service provider? Do they think they’re getting what they pay for? Is it value
for money in their eyes?

Many, probably most, consumers and
a lot of corporate buyers will say they just don’t know. They’ll point to conflicting information and
lack of benchmarks – not on price, but on quality.

There is one particular benchmark
that stands out in this analysis. Bear
in mind that you’re dealing with the law.
Which body of people is best trained in the law? Which occupation is most likely to spring to
somebody’s mind when you talk about a legal problem? Who are the people who by and large sell
their business primarily on the basis that they know about the law and
consequently are regulated and insured in the provision of legal services?

That’s a strong message and one
that Will Aid has used to promote its
campaigns for about twenty seven years.
No wonder there are some red faces now.

Monday, 25 May 2015

Today I’m inspired by a
sunny bank holiday morning in Somerset and a typically heart-warming post by my
friend Steve Cornforth, senior partner of EAD Solicitors in Liverpool, at the
end of last week. A Win for Justicereports the settlement of a claim at a
value which was twenty times that of the defendants’ original offer.

I know that it’s by no means the
first such scenario for Steve’s firm and I hope there will be many more happy
endings. Injured folk need to be properly compensated. That’s not just my view,
or the opinion of a small group of self-interested lawyers. In this country as
in many others, it’s society’s view. It’s the law.

Whilst this case is exceptional
it’s not rare for injury claims to conclude with settlements or awards that are
many times higher in value than the sum insurers were prepared to pay. One of
my more memorable cases (see Foxes
and chickens) involved an offer-award ratio of similar proportions. There
are many others where the gap is not so alarming, but still remarkable.

At this point you may be thinking
“Big deal” and wondering ‘what’s the problem?’ Insurers have a position to
protect and responsibilities to their shareholders. That’s their business. Claims
handlers and their lawyers can’t be a soft touch.

So they try to minimise outlay,
perhaps keeping in perspective the expense of that process (yes, I’m smiling
too). If they’re wrong then the claimant will ultimately satisfy the court that
he or she is entitled to more and the defendant will be ordered to pay the
costs as well. Happy days.

Well, as many readers know, it
doesn’t quite work like that. Even in the most successful cases there are costs
reasonably incurred by the lawyer and chargeable to the client that are not recoverable
from the losing party. There is the risk all along the way of something going
wrong, regardless of the merits of the claim or the skills of the lawyers.

Irrecoverable costs and
litigation risk are meat and drink to insurers. They go with the territory and
are largely neutralized by economies of scale.

But the clue to the real issue
here is in that reference to lawyers. At the end of the day it’s expert legal
representation that makes the difference. Only trained professionals can tell
or reassure a claimant that what they’re being offered isn’t enough – and then
help them do something about it.

So, fair fight then? No, it isn’t
– for these reasons.

Injured victims left without
representation will be ‘mugged’, as the Law Society campaigned to warn them two
years ago (Never walk
alone). The insurance industry knows that is the key to reducing the
expense of compensation. There are three main elements of the strategy.

First, get hold of the victim
from the outset and try to deal direct. Tell them they don’t need a lawyer,
tell them they’ll get no more money by using a lawyer, tell them it will only
delay matters and cost them money in the long run. It’s called ‘claims capture’.
See Livin’ Aviva
locafor an example of it (almost) happening to one of my own personal injury
lawyers!

Secondly, if they can’t get the
innocent claimant on their own, then insurers will try to steer the victim to a
firm of lawyers who, frankly, aren’t up to the job because their business model
doesn’t enable them to deploy staff who know what they’re doing or to exercise
proper supervision. (See Fun boy threeand many others).

Thirdly, insurers run a wider
campaign to destroy the independent firms trying to deliver best service to
deserving claimants. From the relentless black propaganda about whiplash
injuries (Hey diddle
diddle) to the slashing of recoverable costs, the war is aimed at
removing from the battlefield the champions of the innocent.

Many people I talk to about the
mythical ‘compensation culture’ display some degree of reticence about pursuing
a claim, whether it’s a current issue for them or a hypothetical situation. Insurers
have succeeded (funded by the premia that potential claimants pay) in
stigmatizing the concept of compensation for loss and injury caused by
negligent third parties.

It’s like paying a club
membership fee but being told constantly by the management of the club that it’s
not the place to go. They still want you to pay the fee, of course, and they’ll
keep promising to reduce it…

And for those mutinous, stubborn
victims who want a lawyer with integrity and ability to help them on this perilous
journey, the choice is narrowing – again because of insurers’ long-term
campaign to eliminate their guides. Good claimant lawyers are leaving the
market because it’s no longer financially viable. They won’t be replaced.

The insurance industry have made
great strides, with enormous help from a supportive government over the last
few years, in progressively reducing the amount of costs that successful
claimants are entitled to recover from the insurers of the person responsible.
Portals and fixed costs – with the rules ever changing – are all about putting
up barriers to justice.

The outgoing Lord Chancellor gave
them a considerable bonus just before he left office with an eye-watering rise
in court fees of up to 660% at some
levels. Mr Grayling and his colleagues said it would have no impact on access
to justice – on the “optional
activity” of litigation as Lord Faulks described it. Incredible.

Back here on this planet, I can
immediately think of one case where my decision to help a potentially deserving
claimant will be hugely influenced by the fact that the court issue fee is
likely to be £10,000 rather than around £1500 as it would have been less than
three months ago.

Insurers complain constantly of “disproportionate
costs” with the happy result that a supine government removed recoverability of
success fees (the lawyers’ reward for the risk of no payment at all) and
continued through costs budgeting to
limit the amounts that a winning party can recover from the wrongdoer.

The important thing to remember
about costs budgeting, and generally costs-shifting between parties, is that it
doesn’t limit the amount either side may spend on the litigation. It’s their
choice, in theory, to throw as much as they like at any particular case
regardless of where the bill lands at the end of the day.

Theory is one thing. The reality
is that whilst injured victims and their lawyers depend case by case on success
to fund access to justice, insurers always have a war chest to fight a claim
regardless of whether it seems proportionate. If funds run low, they’ll
increase the cost of insurance.

And then they’ll complain loudly
that it’s the fault of ‘compensation culture’ and ‘fat cat lawyers’.

Here is the ugly disparity between
the two camps. Deserving claimants, or more likely their lawyers, have to face
a significant risk that any individual case may fail. The ‘easy’ ones no longer
generate anything beyond the cost (if you’re lucky) of running them. That risk
has been hugely augmented over the last two or three years.

Defendants, or rather their
insurers, can always afford to fight and will justify what they do by reference
to policy and points of principle. Together they maintain a campaign which is
aimed not at the merits of an individual case but at the weakening and destruction
of those with the capability to run them. They do not care in the slightest
that an innocent victim may not receive the support they need and to which the law
says they are entitled.

Cases like the one just reported
demonstrate over and again that whilst the law of this country says you may and
should have a remedy, the barriers rise and multiply. Innocent victims need
brave and talented lawyers but the numbers are in decline. So is the law. (Road to ruin)

A client who has recently signed
a CFA with us came from the ABS to which he had been steered by his own
insurers having formed a view about their ability and, more important, their
true loyalties. He wrote of “a system obsessed with bottom-line profit at the
expense of absolutely everybody”.

Wednesday, 11 March 2015

Yesterday I was fortunate enough
to breakfast with a couple of professional friends who, between them, must know
just about as much as anybody could or hope to know about personal injury
litigation in this country (and as far as Rome too!)

Inevitably, the main subject of
conversation was the news from the Ministry of Injustice last week and the grotesque court fee hikes quickly
implemented two days ago. We took the opportunity to develop a (darkly) humorous
idea that had been floated briefly in the ether last week on the back of Lord
Faulks’ noble proclamation that “litigation is very much an optional activity”.

We thought we might set up our
own privately owned civil court.
Naturally, we would try to replicate all the good things about our court
service - there are many - but do everything else (far) better.

We would still charge fees to
court users but they would not be anything like those so very recently imposed
by our esteemed Lord Chancellor. We
think that at many levels they would probably be more in line with the
radically different fee structure that we used to have…last week.

This funding scheme could not be
relied upon to maintain the service partly because existing volumes probably
would not generate sufficient value at that level and also because usage is
always unpredictable. On the other hand, the service needs to be maintained so
that it’s there when required, rather than turning into that rusty old machine
in the derelict shed (see Road to ruin).

So the simple answer is that we
would have a regular subscription paid by all potential users of the
system. We would make sure that everyone
who might need to have recourse to our justice facility made a contribution
proportionate to their income.

To reflect all these attributes
we were trying to think of an appropriate name for it - maybe......er, a “tax”.

Come to think of it, we could use
the same model for one or two other things that one might class as “optional
activities”.

How about using that fund to
support and maintain a bunch of security people that you could call upon when
you need them to protect you, your loved ones and your property.

That way, you would not need to
worry about whether you could find or afford the money to avoid, perhaps, being
invaded by a foreign nation or getting beaten up in the street. It would be these guys who turn up and defend
you, or by their very existence discourage such events to a large degree. We could call them....”the defence services”
and “the police”.

Now, what about some medical
facilities. If we could use this fund to
provide hospitals and ambulance services that would be quite useful. Then, after you had had your head kicked in
or been run over by a car you would not need to bleed to death whilst rummaging
through your pockets or bag for cash or a credit card and trying to work out if
you can afford to have your life saved.

We could call this – oh, I don’t
know – a “health service”.

You get the idea.

If you’re going to have any sort
of facility providing benefits to all its members or potential members, then
you need to commit to an investment and maintain it, irrespective of whether,
in the short to medium term at least, you’re convinced of the need for it.

Whether it’s a friendship or a
municipal building, you cannot expect it to be there just when you want
it. You have to accept that you will
need to make an investment of time, money or whatever – often when it does not
suit you – if you want it to be there when it does suit.

Some things are so important that
they must not be left to chance, susceptible to the irresponsible or selfish view
that “we’ll worry about that when it happens”.

When it comes to vitally
important, and by no coincidence significantly expensive, facilities it is the
undeniable duty of the state to take responsibility for the well-being
of its citizens.

Defence, policing,
healthcare. None of these should be
expected to be self-funding.

So what about justice? Justice is a cornerstone of the democratic
state.

It’s no more an optional activity
than being invaded, murdered, raped or bleeding to death. For many people,
legal services are a distress purchase and they need to be affordable one way
or another.

Our democratically elected
government has a duty to ensure this.
Aristotle, Dostoevsky and Ghandi are all credited with similar
observations the essence of which is that as a society we are judged by the
manner in which we treat our weakest members.

Sunday, 8 March 2015

If I told you that the price of something – anything – next Monday will be 760% of what it costs you today, where might you think I am speaking from?

Venezuela? Zimbabwe perhaps? Or some dark dystopia - a
creation of Orwell or Kafka?

Well, if you pitched for the
third option you were probably closest but for “Orwell” and “Kafka”, substitute
Cameron and Grayling. I’m talking about
the UK – today – as we brace ourselves for a price rise that will be more than 2,500
times the current “record low” rate of inflation in this country.

So, what is it?
What is this precious commodity that deserves such a colossal mark-up?

Justice.

Seriously.

Our Ministry of Injustice is raising the level of fees that people will
have to pay to The Court Service to
begin a civil claim – and how.

For claims worth under £10,000
there is no change to the current structure but above that figure and up to a
value of £200,000 the court fee payable will be in all cases 5% of the value of
the claim. For example, a case I issued
a few days ago that attracted a court fee of £610 would now cost just shy of
£2,500 to get started.

At the top of this horrifying
ladder the difference is alarming. A
current fee of £1,315 rises by 660% (sic) to £10,000.

The new fee is 760%of the old one. For brief analysis of the figures, see my
blog through the link behind that grotesque statistic.

Yeah, so what’s the fuss
about? Everything (except oil) is
getting more expensive and the current prices are probably nearly as old as
Magna Carta.

Well, no – actually court fees
have been rising steadily for many years and there were reviews of the fees
order in April and August last year. Periodic (annual usually) increases have
always been swallowed, with varying degrees of indigestion. It’s always too much for one side and not
enough for the other – but, hey, that’s life.
Nobody is being unrealistic.

This present move is horrifying. Some readers may wonder why they have not
heard much, or anything, about this coming and the answer there lies in the
current Justice Secretary’s own personal brand of “consultation” which by now
has passed into legend.

Christopher Grayling’s track
record of deceiving Parliament and the electorate or otherwise plain and simple
getting things wrong is largely catalogued in my post about the Ministry of Injustice. Even since then, he has travelled further down
the same career path.

Yet another judicial review
earlier this week found that once again our Lord Chancellor had acted unlawfully. What a fine example to our legal system, and
of justice in the Western world.

But he doesn’t care. Facing widespread and heavyweight opposition
from within the legal industry, he has ploughed on and brought the
implementation date of these proposals forward as quickly as possible one aim
presumably being to get it done before the Law Society launches its promised
judicial review of the increases.

Grayling’s sidekick, Shailesh
Varma dismissed the objections last week proclaiming that these price rises
would “have no impact on access to justice”.

Those of us who have been around
this industry for a while (and many who have not) said that the introduction
for the first time of issue and hearing fees in the employment tribunals would
create a barrier to justice for many. We
were talking there of fees to run a fairly typical unfair dismissal claim
totalling £1,200. To put that in context
of your average wage earner in this country, suddenly and wrongly out on their
ear with no other redress, see Fire at will.

For those who haven’t twigged
yet, in both of these contexts we are concerned here solely with the fees that
a claimant has to pay to the government to use the court process. They are nothing to do with the costs of a
solicitor or barrister to help you with the process. That is another story.

You don’t need a Masters in
rocket science to appreciate the likely effect. Guess what? Official statistics have proved that in the
twelve months following the introduction employment tribunal fees, the number
of claims brought has dropped by around 75% to 80%. Access denied.

It’s hard not to feel contempt
for those at the MOJ who says this will have no impact. It’s nonsense. Of course it will. It’s a no-brainer.

Commercial clients that I act for
are up in arms over this. Litigation is
part of their daily business, factored into overheads and cash flow. £610 may not raise an eyebrow but there will
be at least a cough at £2,500 for the same value of claim.

Plenty of examples similar to
this have already been cited but what of somebody like the unfortunate lady octogenarian
thrown over the roof of a car from the apparent safety of a zebra crossing in
the centre of Bridgwater at 9:30 one Tuesday morning? A handful of other lawyers that I had the
privilege to fight alongside in the Court of Appeal twelve years ago will
recognise the event that spawned my contribution to what became the Conditional Fee Test Cases.

That innocent and badly-injured
pensioner could not afford court fees. I
did what hundreds of other solicitors up and down the country have always done
and would still do – funded the court fees and other disbursements, as well as
taking the risk of not getting paid for the original claim, two appeals and
goodness knows how many battles over the costs of the costs of the costs.

Pay a court fee of £1,315 on a
case with decent prospects worth £200,000?
Almost certainly, yes. Same case, same prospects, same value – but I need
to put my hand in my pocket for £10,000.
Mmmm, not so sure.

That’s my outlook and I’m in a business
an integral part of which is to take legitimate and measured risks. There are plenty of other lawyers who
recognize all of this. Present the same scenario to an innocent, injured and
impecunious man or woman on the street and you know where it’s headed from that
point.

Either it won’t happen, or it
will be picked up by the monkeys who work for Peanuts who have no principles and will take the risk because they have
an escape route - selling out the claimant.

It’s not just personal injury
which, we know, leaves a nasty taste with many people who often don’t grasp the
fact that there are deserving accident victims, by law, entitled to a remedy.

This administration just doesn’t
get it. The State has a duty to provide an effective justice system. That doesn’t just mean that it should exist – whether in the form of the badly
mutilated remains of our national network of courts or the palatial Rolls Building
in London.

It has to be accessible too. That means
above all else that you cannot move it behind a paywall that is impenetrable
to all but large corporations and oligarchs.

Justice is an entitlement of
society, not a privilege of the rich - unless we are going to wind the clock
back eight hundred years.

Some of my friends and
colleagues, particularly those in what for me is the strange territory of
family law, insist that “it will be alright” – even suggesting that this is “a
good thing”, to use the parlance of 1066
and All That.

Why? Well, because we now have mediation in the
sense that it has been around for a few years, everyone is familiar with it and
there is in truth a well-organised industry.

Don’t get me wrong – I am a big
fan of mediation. I have trained as a
mediator. I have used those skills in
professional and private life beyond the confines of helping parties to
litigation to find better solutions than even our best judges could impose.

But it’s not a complete
answer. It’s a scenario where you can
probably make the horse drink, but the big question is whether you can lead it
to the water in the first place. For
more, see Mediation's Achilles heel.

It won’t work in all cases purely
because it’s consensual. Some parties to
disputes, business or personal, are not interested in the ethics and beauty of
a collaborative solution. They just want
to win.

Why then commit to a process
within which you will inevitably be going to make some concessions when you are
holding all the cards and the only way for your opponent to change that is by another
process that he or she cannot afford. It
runs something like this (I’m the bad guy in the driving seat here)….

Decent person – “this court business is all too expensive for me but
fortunately there is a practical alternative to help us reach an agreement that
you should pay me at least some of the money I think I am entitled to. Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court. Can’t we mediate? Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Enough said.

These monstrous court fee
increases are a death knell for justice.
We are not just taking about the immediate barriers to those with claims
today or tomorrow but about the accelerated decline and decay of the civil
justice system.

The machine, through disuse, will
fall into decline. Maintenance engineers
(yet more) will look for jobs elsewhere.
The machinery won’t be modernised. There will be nobody who remembers
how to use it.

There will be just a mass of user
manuals created within the course of a decade, though it will be unclear which
one to consult. There might still be a crazy old boy at a desk in the corner of
the shed who faintly recalls how to fire it up.
Come to think of it, that could be me or one of a handful of others I
can immediately think of.

Joking aside, this is headed into
the abyss. A lot of people, lawyers and
their clients, will turn their backs on the system. The lawyers will go and do something else and
those with a problem they cannot afford to ask the judges to resolve will look
for other avenues to “justice”.

In some, perhaps many, situations,
that highway may be called “mediation”.
In a growing number of cases it may be the Road to Ruin.